You are on page 1of 15


5 questions to answer in class:

1. What is the language of statute at issue?
2. Did the court find the language ambiguous?
3. What is the majority’s argument?
4. What is the dissent’s argument, if not dissent, losing side?
5. What interpretation approach is court using?


I. Canons of Construction Related to Process

1. "Last-Enacted Rule"
2. Specific controls general
3. Repeal by Implication not favored
4. Statutes Patterned After Another State
II. The Role of Statutory Components
1. Title & Enacting Clauses
2. Preambles, Purpose Clauses, and Findings
3. Substantive Provisions
a. Definition Section
b. Responsibility, Administrative, and Enforcement
c. Provisos
d. Statutory Directives to Courts As to Proper
e. Miscellaneous Provisions
f. Severability Provisions
g. Effective Date Provisions
III. Interpreting the Text
1. Theories of Interpretation
i. Textualism
ii. Plain Meaning
iii. Intentionalism
iv. Purposivism
2. Plain Meaning Rule

i. Words with Ordinary Meanings

ii. Whose meaning matters
iii. Where Plain Meaning Comes From
iv. Words with technical or contextual meaning
II. Canons of Construction Related to Text
1. In Pari Materia (Whole Act Rule) –look at stat as a whole.
Don’t miss winning argument


2. Noscitur a Sociis

2. Ejusdem Generis

2. Expressio (or Inclusio) Unius Est Exclusio Alterius

2. Identical Words Presumption


2. Rule against Surplusage


HTML Translation provided by INSO Corporation's Outside In ® HTML Export software.


1.1 Mischief Rule or Purpose Approach:

a. Construer first id’s mischief or deficiency of CL and legisl and adopt construction that
will suppress the mischief and advance the remedy. Find the true reason for the remedy
and expand or contract words of text to carry out the leg purpose.

1.2 Plan Meaning Rule:

a. Don’t look at other sources. “Where no ambiguity, no room for construction.”
DISADV: can frustrate leg intent. Must find ambig before it can see other info

1.3 The Golden Rule or Baron Parke’s rule:

a. If the unambiguous meaning of stat leads to an absurd or unjust result or even an
inconsistency in the statute, the construer should search for the correct meaning &
construe to avoid absurd or unjust result.


A. Sources judges use:
1. Textual canons of stat interp: rules of thumb that help judges draw inferences from
words, grammar, etc. Less key today.
2. Sources extrinsic to stat text: Related statutes, statutes in other states, and legisl
3. Sources extrinsic to stat text and legislative process. Ex: rule of lenity-can’t be
punished w/o DP of law. Gen requires that crim statutes be given narrow interp (p.13)

1.5 HOW BILL BECOMES LAW (see book p. 16 for overview)

(See how history is created through the many stages. USCAN (leg history, text of
laws, committee reports)-Statutes at Large (session laws))

1.6 Canons of construction related to process

A. Last-enacted rule
1. Statute enacted later in time prevails. (Uniform Stat and Rule Construction Act). A
separate canon directs that when two statutes conflict, the more specific statute should
control the more general.
2. What if earlier, specific statute conflicts with general, later. USRCA gives effect to
earlier, specific act unless “context of the later enacted statute indicates otherwise.” E.g,
the specific manifest intent required in Conyers.

B. State v. Conyers-man on parole convicted of escape when he did not return to halfway
house. Rule court used to interpret statutes was: A special provision prevails as the
exception to the general rule. HOWEVER, general will prevail if enacted 1)more recently
and 2)the manifest intent of legislature is for general provision to prevail over specific.
(Presumes legislature knows earlier one exist)

2.1 Statutes Patterned After Another State
1. USRCA § 12(d) “A statute or rule that incorporates by reference a statute or rule of
another jurisdiction does not incorporate a later enactment or adoption or amendment of
the other statute or rule.” [This is more than persuasive, almost mandatory. Cases after
adoption are merely persuasive.]

2.2 Repeal by implication not favored

1. Stat interp canons presume legislature was aware of judicial opinions existing in other
states when they act. The same presumption goes for existing laws in their own
2. This is unrealistic, so judges do not assume that a legislature repealed an existing law
by enacting a contrary law unless the intent to repeal is explicit (not clear what
expression of intent is required).
3. Morton v. Mancari – Issue was whether Indian preference was repealed by EEOA of
1972. Indian preference was not mentioned in 1972 act. Court said no evidence of
legislative intent to repeal earlier act. Law was designed to deal w/ different problem.
Only possible exception is when statutes are irreconcilable. Said Indian provision was
specific provision.

2.3 Possible arguments for problems like Problem 1.1 (Look at copy of § 20 in notes)
1. Argue for intent
2. Specific/general
3. Later/earlier
4. Borrowed statute rule 12(d) (supra) (Dees will want to argue that his court should only
look at 1985 holding where business people could sue.) Other side can argue it’s still
5. Policy


(Act and Bill are the same thing)

3.1 General Rule

First, start with text of statute. If ambiguous may look at title.
Rule: Look to title when statute is ambiguous

3.2 Titles
1. Long title-“to” “relating to”
2. Enacting clause- be it enacted. Usually argued that if after enacting clause should be
considered-it has gone through legislative process. Enacting clause must precede sections
of statute intended to have force of law.
3. Short title-p. 49 part of statute and should affect interpretation
Holy Trinity case-had to decide whether law applied to priest or just common laborers.
Court said language of statute was clear. Even though it was clear they used title. “…a
thing may be within the letter of statute and not within the statute, because not within its
spirit nor within the intention of its makers.

Caminetti-Court had to decide meaning of “immoral purpose”. Majority says this phrase
is broad. Dissent says it’s ambiguous –we should look at short title. Majority says title
should only come into play when ambiguous.

3.3 Preambles, Purpose Clauses, and Findings

A. “Preambles” id important facts or considerations leading to passage of the bill. When

the preamble precedes enacting clause should not be determinative of stat’s meaning.
Findings follow enacting clause and should affect interpretation & have more impact.

Commonwealth v. Besch-Does statute apply to illegit businesses? Majority looked to

findings. Dissent said that plain text of statute was clear-should looks at way others have
interpreted RICO statutes.

Sutton v. UA-What was definition of disability in ADA? Majority looked to preamble.

Used an ambiguous number from findings. Said they were not disabled under ADA-
correctable disability. Dissent: if statute is remedial should be construed broadly to effect
the purpose. Said majority was concerned about floodgates of litigation. [Maybe less of
an argument here than if this were a common law case-that of preventing floodgates]

3.4 Arguments:
1. Title not controlling if language clear-argue it’s clear or not clear
-If you say it’s clear-you don’t need title, preamble etc.
-If not, say you need to go for purpose, etc.


4.1 MISC.
Definitions: courts are bound by definitions given by legislature. Courts expected to
follow them. Look for general def for all statutes/your statute/particular subsection. If
legislature has defined words, then these definitions trump all other interp.
Leal-D convicted of molesting gf’s niece. TC said that definition of duress
included “hardship”; deletion of hardship only applied to rape/spousal rape stat.
(Didn’t use whole act rule.)
Provisos:limiting language. They come with general rule “provided that”; provided that
is proviso. They are to be strictly/narrowly construed. Hold leg to what it says.

Effective date: when signed by Pres/gov unless leg specifies other day.

4.2 Key terms

Theory: way of thinking of something; approach to something.
Doctrine:something you can grab onto.

Intrinsic to statute: words of stat, context-with other statutes

Words/punctuation themselves are intrinsic to statute. Context-this statute as well as other
statutes around it. Intrinsic-anyting you can glean from the statute,words or other statutes.

Extrinsic-legislative history, case law interpreting statute,


a. Plain meaning approach: Look to extrinsic only when ambiguity; otherwise text.
Look at context to be sure it isn’t ambiguous. Textualist stops if clear on face.

b. Intentionalist: Use extrinsic & intrinsic always to determine if ambig & to resolve it
i. Maddox-purpose of statute was for something different and therefore legislature
couldn’t possibly have meant that.

c. Textualist/strict constructionist: Use words/text themselves; only if ambiguity use

intrinsic aids.
i. Dixon –strict textualist (puts burden on legisl-if they didn’t mean they should


1. Ordinary plain meaning of words/look to dictionary; ordinary usage. Look at media,

newspapers, etc. when trying to establish plain meaning.

2. Technical definition-(See Patrie p.98) Look to ordinary reading of person it’s directed
to. (Most statutes directed at common people-esp crim) Do we only look at dictionaries at
time legislature enacted the act or ones in effect now? Might depend on which view you
take –intentionalist might want to look at old one. Words might mean something different
if directed towards i.e., lawyers.

Know judge-helps you to know which approach to use.

PART 5: Canons Related to Text

*These canons lie somewhere b/w literal language of text and purely extrinsic evidence,
such as legislative history. Strict textualists will apply these canons only when the text of
the statute itself is ambiguous. Good attorney will argue that the text is ambiguous and
then apply the canon of construction that best supports client’s interpretation.

5.1 In pari materia (Whole Act Rule)

2 parts:
(A) Requires courts to acknowledge that legislature enacts bills as a whole, not as
individual sections, and so they must be interpreted as a whole. This includes the objects
and policy of the law. However, the whole act rule presumes coherence or internal
consistence; a presumption that may not be realistic.
(B) Additionally, whole act rule states that where legislature bases a statute on an
existing one: both should be interpreted similarly, unless leg history or purpose behind
the new stat suggests otherwise. Legislature is presumed to have been aware of prior
interpretations of the existing statute (regs and decisions) and intended for the new statute
to be interpreted in light of those existing decisions.

Rhyne v. Kmart-P’s sued for med damages. Court had to decide whether damage
limitation should apply per D or whether it should be reduced per plaintiff. Court uses in
pari materia giving effect to every provision. Use of other singular terms in section
suggests statute applies to reduce each p’s individ damage award. Other statutes in bill
indicate limitation should apply per p not d.
Comparison with Leal-D used in parie argument saying that court should apply other
duress definition used in rape/spousal rape section. Majority doesn’t accept b/c definition
states “as used in this section” to indicate it didn’t apply to other statutes. This is
consistent with Kmart b/c it is distinguished by the “as used in this section” that was not
present in Rhyne v. Kmart.

Lorillard v. Pons-Here there is statutory silence. Trying to decide if jury trial for action
for wages under age discrim act. Congress incorporated FLSA and CRA in creating
ADEA. Adapted procedures of FLSA which afforded jury trials. In light of Congress’
selective incorp of FLSA we cannot assume that Congress was unaware that courts had
uniformly afforded jury trials under FLSA. Majority adopts plain meaning approach;
intrinsic factor when looking at other statutes.
5.2 Nosciture a sociis (it is know from its associates)
5.2.1 Intro: Meaning of words that are placed together in a statute should be determined
in light of the words with which they are associated. When two or more words are found
together and they ordinarily have a similar, but not equal meaning, the general word is
limited and qualified by the more specific word. Often used to give more limited meaning
to general words where the context indicates a narrower meaning is intended. List of
specific words are determined in light of words with which they are associated.
a. People v. Vasquez-Court determined that by grouping 6 words together the leg showed
intent to proscribe conduct amounting to actual/threatened violence. Conduct did not fit
within that range. Majority uses plain meaning approach b/c they used the canon to help
interpret the terms. Concurrence: intentionalist/purposivist approach-look to public pol.

5.3 Ejusdem generis (of the same kind, class or nature)

A. When to use:
1. When list of items that ends with general collective (or catchall) phrase such as “other”
ejusdem generis is the applicable canon, not noscitur a sociis.
2. When there are general/specific words clearly associated in the same sentence in a
pattern such as specific, specific, general, general. When general words in statute precede
or follow the designation of specific things, general words should be construed to include
only objects similar in nature to the specific words.
3. Do not use if:
i. statute includes the phrase “including but not limited to” b/c inclusion of that phrase
clearly expresses leg intent not to limit items covered by statute to types of things
specifically listed.
ii. when list of things is not sufficiently similar (eg, incompentency, corruption)

*Ejusdem generic tells us how to find items outside the list expressed in the statute.
Noscitur gives meaning to words in list.

B. People v. Fields-Court said applying ejusdem generic and noscitur would restrict
meaning of “other matter and things” to less than its common meaning. D wanted it
applied to say it was limited to writings. Majority uses plain meaning approach-look to
words themselves. Rule of lenity-if 2 interp in crim statute, choose the more narrow;
court didn’t apply b/c cal penal code says “we will not apply rule of lenity”

C. People v. Jacques-By looking at commonality of the specific terms before structure

definition of structure must be something that can be physically entered into and a fence
cannot be physically entered into. Used ejusdem-found commonality in all terms. General
term must be limited to specific terms meaning “entered onto”. Ejusdem would not be
used if there was a phrase like “including but not limited to.” Plain meaning-found it
ambiguous and then used canon. [later reversed and he was guilty]

5.4 Expressio unius est exclusio (inclusion of one thing excludes the other)
A. Assumption: Legislature knew and thought of alternatives. This, as other canons
we’ve studied requires legislature to be clear/say what it means.

B. Dickens v. Puryear-Court determined that IIMD was not meant to be in list of torts b/c
it was excluded. They use plain meaning or text approach. Expr u. is appropriate here b/c
can’t use noscitur/ejusdem when statute is silent. Decided stat ambig b/c silent. That
IIMD was not included in SOL was prob oversight that should be fixed by leg.
NOTE: If we were trying to determine whether tort definition of assault being used-
could use noscitur. Audience is lawyers-assault used in technical sense.

5.5 Identical Words Presumption

[Variety of word usage not favored in legal writing-lawyers trained that when word
changes-meaning changes. The more basic-the easier to understand.

A. Definition: When legislature uses word/term expectation is it means it same way every
time is used in different parts of same act.

B. Jensen v. Elgin et al: “children” being interpreted in statute. App court tried to give
same meaning to word in wrongful death and survivor suits (see notes)SC says the issue
was the measure of damages-definition of children was irrelevant. SC-plain meaning or
5.6 Rule Against Surplusage
A. Statute should be interpreted so that every word, phrase, sentence, section has
meaning. Every part needs meaning. We assume legislature meant what it said.
B. Feld v. Roberts-Issue was whether employee could have lawyer present at medical
examination. Statute said they could bring a doctor. Majority: Don’t want words to be
surplusage-why put sentence about md in otherwise? (Could have used expression unis).
Would have to have strong countervailing implication for use to override what we found
in canon. Concurrence: argues good idea to have lawyer; leg should change. Dissent:
Silence is ambiguity. Look at in pare. Leg didn’t intend this result-might have presumed
attorney-MD not as obvious.
5.7 Plain meaning canon-look to word meaning through dictionaries, etc. Most theories
use this. Plain meaning theory=way of approaching interp;

Part 6: General Punctuation Rules

6.1 Intro
Punctuation matters but it cannot trump the plain language of the statute. When words
ambiguous sometimes punctuation will help us. Sometimes the punctuation screws us up.
We give generally accepted construction to punctuation.

6.2 General
A. U.S. Nat’l Bank v. Indep Ins Agents: court rewrote statute-said that something that had
been taken out actually had not been repealed based on statutes at large. Dissent:
Disagrees-we should look at extrinsic b/c text and punctuation ambig. Majority says-not
amig once we apply. Court repunctuated statute-said “Courts should disregard
punctuation or repunctuate, if need be, to render the true meaning of the statute.”
“Statutory construction is a holistic endeavor and, at a minimum, must account for a
statute’s language,punctuation, structure/subject matter.

6.3 Commas and rules of last antecedents:

6.3.1 General Comma Rules
1. In a series of three items, if each is set off by a comma, then each should be viewed as
independent of the others.
2. When a modifier is set off from a series of antecedents by a comma, the modifier
should be interpreted to apply to all of the antecedents.
3. Last antecedent rule-if modifier not set off from series with commas, then only applies
to last one in series.

Peterson v. Midwest Security-tried to determine meaning of “property” for the statute by
looking at comma placement. Used intentionalist approach to say legisl wanted broad
immunity. Gave their own interp to coma placement. Dissent: said grammar could answer
the question-look at the commas.

State v. One 1990 Chevy Pickup: I-whether she had to actually be transporting drug for
sale or whether personal use in transport was enough. Used comma interp to say it was
only when possession is for purpose of sale. See p. 167
6.3.2 Conjunctive v. Disjunctive: conjunctive-if you have list separated by and must
have all items in list. Or means you can have any one of. Sometimes and means or

Comptroller of the Treasury (168)-Usually presumed that “and” is not interchangeable

with or. Court needs to see that it means something different-need legislative intetn that it
means something different.

6.3.3 Exception:
General rule: Grammar matters-it can generally help clear up ambiguity. Exceptions:
singular can include plural and masc/feminine can include other sex.

Van Horn-case used for two purposes-the word person whether it means singular or
plural. Stat say if any d (in ind sense)if his or her liability greater than p then p recovers.
Majority: Used in pare to look at other statute. However, they were required by law to use
canon saying that singular mean plural, but they didn’t. Court was required to use canon
by NJ law, but majority didn’t do it. Dissent: should have used stat directive.

6.3.4 Problem 5-3

State: Wants just it to apply to just B. They use last antecedent rule-if it is meant to apply
to both, there should be a comma.
D: Statute was meant to apply to both; apply intentionalist argument; ignore last
antecedent rule. Also use plain language argument as to whether she withheld
shelter/created risk of bodily harm.

TEXT....components....canons.....context....leg history....unexpressed purpose


This exception would be used when the plain meaning of text leads to absurd result, plain
meaning must be rejected. Meaning must be clear before you can use this; can’t use if
ambiguous (according to Jellum)

7.1 Green v. Bock Laundry

What does “the defendant” mean for purposes of using balancing test of probative value
of evidence v. prejudice to d. Plain meaning leads to absured result (all three opinions
agree); would violate EP. Majority: should be crim d that gets balancing test. Dissent:
Should be “any party”; no reason not to protect all litigants-fact he was convicted felon
here had little to do with the issues in case. This goes against what we’ve done to date-
holding legislature to what it wrote.
i. Scalia concurrence: should use two factor test
Look to meaning that is:
a. Most in accord with context and ordinary usage, and thus most likely to have been
understood by whole Congress which voted on the words of the statute (not to mention
the citizens subject to it),
b. and Most compatible with surrounding body of law into which the provision must
[Scalia Shows that strict adherence to textualism is sometimes unworkable]

7.2 Problem 5-4

State: use Golden Rule and say it may be clear but would lead to absurd result. Argue
purpose in that statute says society has strong interest in enforcing laws.
Defense: HE was not a felon b/c juvenile. He was a delinquent and couldn’t commit
felony under stat. There may be different reasons for different standard; we don’t want
these kids out on street. Should apply rule of lenity.

8.1 Intro
A. Looks at 1)What was the problem or evil Congress sought to address? 2)What
interpretation of statute best address that evil. [Don’t need ambiguity-look at everything
from beginning]
B. CONTRAST FROM INTENT: Did legislature intend for stat to cover this case.
C. Learned Hand claims purps better at discerning meaning: “statutes always have some
purpose or object to accomplish, whose sympathetic and imaginative discovery is the
surest guide to their meaning.”

8.2 State v. Courchesne:

Language at issue was “committed the offense”. On plain meaning level, D’s interp
makes more sense, but look to purpose of law. Here, it is ambiguous so they can’t apply
golden rule (plus this is a purposivist court-that will automatically look at everything
from the begning. Dissent: There’s ambiguity-we have rule of lenity and should go with
narrower interp.
1. No one else does it, so why are we? (purposivism)
2. Majority relies on unexpressed ideas of purpose. If meaning plain &
unambiguous. Using this to trump statutory language.
3. [Ignored rule of lenity.]
4. Plain meaning adoption-we force legislators to write clear statutes.
5. Public choice theory-there cannot be one purpose-bargaining b/w groups makes
6. Judicial activism by majority-by looking for things in leg history, court can do
anything it wants.
7. Purpose is too general to be helpful.

1. It’s not our job to tell legislature how to write.
2. Judicial activism
3. Response to 7, purpose can come from many places.
4. Response to 1, so what.
5. Unexpressed purpose-2-comes from many places.
6. No response to public choice theory.


9.1 US Steelworkers v. Weber
U.S. Steel (Majority position-purposivist): Argue that definition of discrimination is
ambiguous. Employ the various canons. Then go to Holy Trinity-and look at legislative
history to find purpose. Also members can put stuff in legislative history that is just their
own point of view and it becomes part of record. Amendement proposed in committee-
that is relevant extrinsic source.
Weber: (Dissent)
Step 1: Look at statute-Id language at issue. Step 2: Is language clear. Here weber argues
it is. Employs rule against surplusage-we don’t need permit in statute b/c if you added
language to other statute would violate this rule. Dissent goes to leg history to refute

9.2 North Haven Board of Ed. v. Bell

Language “No subject to discrim.” Did employees come under this language?
Majority: Language not clear. Amendment proposed in floor debate-that info is relevant.
Majority concludes congress meant broad remedy from coments. Dissents: More limited
application and clear language indicate more limited application. Dissent goes to leg
history only to counter.

9.3 Reasons to be suspicious of legislative history

1. May not be truly reflective of legislative intent as a whole. A few legislators may
not represent the whole.
2. Manipulation of the record
3. History can be ambiguous.
4. Audience-how many citizens know to look at USSCAN.
5. Bargaining-just b/c one votes for a law doesn’t mean they have same intent as
person next to them. There’s a fiction that there can even be a legislative intent.
6. text=intent (Scalia) Broader concern that all of these have
7. Congress-separation of power-not for judiciary to make the laws it’s for Congress to
make them


10.1 Subsequent legislative inaction-in general subsequent legislative inaction means
nothing-can use this argument if it’s all you have. You may use subsequent legislative
action. (check this) We are left with legislative actions in other statutes-basically in pare
materia arguments. (If FDA ha tried to do something Congress would have probably tried
to do something)
A. Flood v. Kuhn-(see chart in notes)Whether baseball fell under antitrust laws. Court
relied on prior cases (stare decisis) for its decision and the fact that Congress did not
enact anything to overrule those cases. Congress had 50 proposed changes, but none

MAJORITY-intentionalist DISSENT-plain-meaning
(1)Congress didn’t act to overrule; they had 1. Court may have read too much into action-
proposed bills but none passed. Acquiescence. Congress was unable to do anything-we don’t know
Court had told them if you don’t like it change it. what it meant.
(2) Stare decisis Should we really look at what they do not do?
(3) Remedy needs to be by legislature Usually that is irrevelvnt.
(4) Unfairness concerns with retroactivity. 2. Baseball is IC, it falls in statute just like other
sports. Past decisions were wrong.
3. Combat unfairness by making application

B. Bob Jones v. U.S.-Whether “charitable” (public policy)was required for tax-exempt

status. Language was clear. IRS agency interpreted and changed its interpretation.
Congress did not act directly after agency did. Congress had made many amendments
including one of that section but never overruled the IRS interpretation. Following plain
meaning could lead to absurd result. Majority read public policy into statute.
1. While many bills Congress has not acted to 1. We can’t act for Congress
overrule. They have even amended that section. 2. Public policy reqt is not in statute
2. In pare materia-look in general at other statutes. 3. Bills that weren’t passed only showed debate
3. Evidence of intent in 501(i) that banned tax 4. 501(i) shows Congress knows how to add a
exemption for racist social clubs requirement.
5. The language is clear

C. FDA v. Brown & Williamson: Issue of whether FDA could regulate tobacco. Majority
used arguments that: 1) Congress didn’t enact bills that were considered that would have
let FDA act. 2)Congress passed labeling act that kept FTC from getting involved-so there
is a bill in the area 3) FDA denied jurisdiction. Probably an intentionalist approach.
Dissent: 1)Tobacco falls within statutory definition. 2)Purpose of statute was to protect
public health. [Could argue they were textualist or purposivist.]


11.1 Statutory supremacy: Common Law v. Statutory Law

A. General rule
Every state or federal statute should-if any other possible construction remains available
—be construed so that it does not violate the U.S. Constitution. (State const should be
inter not to violate state or fed constitution.) Policy: Judicial economy-if we could find
another interp that doesn’t raise const issue –it saves time.

1. NLRB v. Catholic Bishop p. 257. – “employer”. Majority found it ambiguous. Majority

interprets term to not include catholic schools. If it had included them-would have to get
into constitutional issues. Standard acc to majority: we need a clear expression of an
affirmative intent of Congress. We look to find clear intent-langauge of stat, leg history,
canons-including other statutes, other parts of same statute, purpose. Court did not find
clear leg intent. Majority didn’t follow the canon-standard is not a clear expression of
congressional intent but rather a construction of statute is fairly possible.
Dissent: They used definition of employer on p. 260. Church operated school was not one
of the exception. Exclusio canon. They use subsequent legislative history. Majority
should have gotten to constitutional question. Subsequent leg inaction usu doesn’t mean
anything. Might argue that Brennan is trying to reach his own desired result.

11.2 Statutes in Derogation of Common Law

Statutes in derogation of common law: If statute is remedial it will be broadly construed.
If in derogation of CL strictly construed. Remedial is actually adding causes of action,
new rights. But when you’re adding a new right you’re taking them out.

Original purpose of canon was to prevent legislature from unintentionally abrogating

common law rights. But where statute was deemed remedial-that is, instead of
eliminating or restricting common law rights or remedies, the statute created rights that
were unavailable at common law or expanded remedies that were otherwise unavailable-
then should not construe strictly. Thus when court characterizes statute as “remedial” this
canon not appropriate.

11.2.1 Problem
You should make an argument that it’s remedial, but when you add a new right you’re
taking away someone else’s right. This canon developed when all law was made through
the courts. Narrowly construed. Not the world we have to do-most in statutes or agencies.
Archaic canon of construction-but ignoring this---best argument: intent-wanted
compensation (purpose) does it make sense to have damages if they live but not if they
die (say be sure to kill them). Georgia didn’t overrule.


12.1 Giving deference to agency interpretations

A. Three questions agency has to decide:
1. Does it have authority to act?
2. Statute grants authority and agency must interpret

B. Standard of Review: Not same standard – more deference to admin agencies-they have
experience in that area and they are in a better position to make decision as a whole. (may
be another reason for more deference.)

C. Chevron-two step process

1. Is the statute ambiguous? [Thinkof this like Has congress spoken to the issue? Can we
discern legislative intent?]
Things you look at:
a. Plain language
b. canons of construction
c. Have other cases determined it. Look at other states’ interpretations.
d. purpose
Should go through all the steps. Textualist might skip extrinsic sources.
IF IT’S CLOSE AT STEP 1: If court disagrees with agency it will normally find it at step
one. You have much better chance to win here than at step 2 if you’re against agency.
IF WE DECIDE STATUTE CLEAR: nothing for agency to interpret. If ambiguity, go to
step 2 to review whether agency interp reasonable.

2. Is agency interpretation reasonable/unreasonable? Look at:

a. statute
b. canons
c. extrinsic sources
d. purpose
e. context
[We are using same factors to look at different things.]
IF IT’S CLOSE HERE: agency wins

TEXTUALIST: What will textualist look at at Step 1. Will she just look at text, canons
and then to agency interp?

SC says it will look at everything first. Distinct issue b/w what Congress meant and what
agencies decided.

12.2 PROBLEM 9-1

See handout where we wrote answers.